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[2014] ZAGPJHC 193
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Gouws v Road Accident Fund (20217/2013) [2014] ZAGPJHC 193 (29 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 20217/2013
In
the matter between:
GOUWS DIVAN
GERHARD
..............................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGMENT
RATSHIBVUMO
AJ
:
1.
Introduction:
The
Plaintiff’s claim arises from a motor vehicle collision that
took place on 24 February 2012. The Plaintiff was riding
a motor bike
which collided with another motor vehicle causing him some serious
bodily injuries. The Defendant conceded the merits
of the action to
the extent that the Plaintiff would be entitled to 75 % of the
liability so proved. The matter is therefore before
this court for
the quantification of the Plaintiff’s claim. This entailed a
determination on whether the plaintiff suffered
any loss of
income/earning capacity as a result of the concussive head injury he
suffered from the collision, and the calculation
of the said loss.
Other liabilities, including general damages, were left to be dealt
with in “another forum.”
2.
The Plaintiff submitted that the loss of
earning capacity was as a result of a frontal lobe brain injury which
affected his moods
and causes him to be aggressive and forgetful.
These, it was submitted, compromised him vocationally and he suffered
a loss of
income/earning capacity. The Defendant submitted that such
an injury did not cause any loss in income/earning capacity.
3.
Absolution from the instance.
After leading four witnesses and handing in few
expert reports, the Plaintiff closed his case. Upon closure of the
Plaintiff’s
case the Defendant brought an application for
absolution from the instance, which application was opposed by the
Plaintiff. This
is a judgment on that application. In order to
determine whether the Plaintiff succeeded in discharging his onus, it
is apposite
to consider the factual matrix upon which the matter is
predicated. Facts of the case would be considered and then weighed
against
the prerequisites for absolution from the instance to be
granted.
4.
Summary of Evidence
:
The Plaintiff’s case comprised of four witnesses, being the
Plaintiff, his mother, the Clinical Psychologist and the Industrial
Psychologist.
5.
The following experts’ reports were
handed in by agreement between the Plaintiff and the Defendant:
Exhibit B
(Combined Neurological Report by Dr Townsend – Neurologist &
Dr Van Heerden – Neurosurgeon). In it, they refer
to accident
related injuries as “fracture of the right femur and mild
concussive traumatic brain injury.” They further
noted that the
patient complained of personality and mild memory problems, which
could be consistent with the mild head injury.
They also noted that
physically, the patient had no neurological deficit. The patient also
had no increased risk for the development
of post traumatic epilepsy.
Exhibit D
,
pages 2-4 (joint minutes of the occupational therapists),
Exhibit
D
page 1 (joint minutes of the
Orthopaedic Surgeons) and
Exhibit F
,
pages 61 to 66 (Psychiatrist report by Prof. Voster) were also handed
in. Prof. Voster concluded that the Plaintiff was not a
candidate for
psychiatric treatment and that he sustained no loss of employment
potential. The following reports were handed in
by agreement between
the Plaintiff and the Defendant:
Exhibit
B
(Combined Neurological Report by Dr
Townsend – Neurologist & Dr Van Heerden –
Neurosurgeon). In it, they refer
to accident related injuries as
“fracture of the right femur and mild concussive traumatic
brain injury.” They further
noted that the patient complained
of personality and mild memory problems, which could be consistent
with the mild head injury.
They also noted that physically, the
patient had no neurological deficit. The patient also had no
increased risk for the development
of post traumatic epilepsy.
Exhibit D
,
pages 2-4 (joint minutes of the occupational therapists),
Exhibit
D
page 1 (joint minutes of the
Orthopaedic Surgeons) and
Exhibit F
,
pages 61 to 66 (Psychiatrist report by Prof. Voster) were also handed
in. Prof. Voster concluded that the Plaintiff was not a
candidate for
psychiatric treatment and that he sustained no loss of employment
potential.
6.
Divan Gerhard Gouws
:
He is the Plaintiff. He testified that he was involved in a motor
vehicle collision that left him with a broken leg and head injury
on
24 February 2012. His head injury was above his eye and was a result
of the damage to the helmet he had on. Whereas he does
not recall how
the collision took place, he remembered driving straight before the
accident. He also remembered taking off the
helmet after the
collision, how he was placed on a stretcher, part of the journey to
the hospital, being admitted and seeing his
mother there. He
testified that he has since recovered from his leg injury and walks
well although he suffers some pain on cloudy
days. He also suffers
from headaches on a rate of about twice a week.
7.
He testified that his moods have changed
since the date of the collision in that he is irritable and he is too
forgetful. He was
involved in two road rage incidents in which he
swore and challenged the other motorists who did not drive well,
ending up banging
the side mirrors of their motor vehicles. He
testified that he also swears at his mother. He testified when this
happens he becomes
unable to control his temper. He also gave an
example that illustrated his forgetfulness saying he once forgot his
driver’s
licence on a scanner at work. He realised this after
he had left and he had to telephone a colleague to take it and keep
it for
him. He was a student at the time of the accident, studying
for a diploma in bookkeeping. He proceeded to complete his diploma
after the accident. He could tell that the accident had no impact on
his academic performances, for he went on to register and complete
two more qualifications, being diplomas in the IT, one of which was
completed with a distinction.
8.
He testified that prior to the collision;
he could not handle stress well. He testified about how he dropped
out of school after
completing his grade 10 in 2008 after his friend
at school had committed suicide. In 2009 he registered for HIGCSE
which is equivalent
to A levels or international Grade 12 through
Damelin, offered by Cambridge University and passed. Although the
University of Johannesburg
had offered to admit him, he could not
register owing to lack of funds and as a result, he could not study
for two years. He once
aspired to study and have a University degree,
but he has since given up because he believes he is too old to study
now. He was
aged 21 when he gave evidence and 19 at the time of the
collision. He testified that after the collision, his social life is
low
since he disengages from friends and neighbours.
9.
His first job was as a Graphic Designer and
lasted from May to August 2013. He left that job in order to start
another one which
was relevant to what he had studied, which is
bookkeeping. He left his second job because he was not in good terms
with his employer.
He proceeded to work as a store man before joining
the company he is currently working for. He is happy with his current
employment
and his work related stress levels are very low. In fact,
a letter from his employer reflects that his working hours were
increased
to full hours per day which also increased his income. His
salary in all the four jobs he held, including the current one has
always
been between R3000 and R4000 per month. Under cross
examination, he agreed that the road rage incidents were the result
of him
being more protective so as to prevent the collision from
recurring.
10.
Linda Gouws
:
She is the Plaintiff’s mother. She stayed with him from the age
of 4 until he was 18. At the time of trial, she was not
staying with
him. She gave evidence to the effect that she noticed some
behavioural change in the Plaintiff since his involvement
in the
collision. She testified that in her observation, he has become more
arrogant and stubborn and is more irritable than before.
She
described the Plaintiff as a go-getter who would stop at nothing in
achieving what he wants. She knew that the Plaintiff was
saving money
to study for a Bachelor of Science degree. This, she said was what he
told her. She also confirmed having told a certain
Ms. Swart that the
Plaintiff’s arrogance was due to his frustration in that he
wants to study but cannot do so owing to lack
of funds. She testified
that he also told her that he was frustrated in that after the
accident, he had no car to drive so he could
look for a job.
11.
She testified that she is the one who paid
for the Plaintiff’s grade 12 tuition fees through Damelin which
was around R35
000. When asked as to why she did not leave him at a
normal school so as to save for tertiary fees, she indicated that the
Plaintiff
was difficult in that he wanted to do things on his own
than to be taught with other kids. She also testified that the
Plaintiff
always wanted to be the first and that if he was second, he
would be angry the whole week. She believed that the Plaintiff blamed
her for the divorce she went through with his father when he was
still young.
12.
Melissa Fernihough
:
She is a Clinical Psychologist employed at the Weskoppies Hospital
and also in private practice as a Neuropsychologist. It was
in her
later capacity that she prepared a report on the Plaintiff –
see
Exhibit C
(Plaintiff’s Expert Bundle 2 – pages 110 to 135). She
confirmed the contents of her report and also testified that
the
frontal lobe injury was difficult to detect through scanners. To
establish if there was any, she relied heavily on the Plaintiff’s
assessment and interviews with people who knew him prior to the
collision. The said assessment took about four and a half hours.
It
is very clear from the report as a whole that she placed a lot of
emphasis on reported aggressiveness and irritability on the
part of
the Plaintiff. Her findings were to the effect that the
Plaintiff’s decreased energy levels and motivation
would likely
render him less productive and ambitious when compared to his
pre-morbid levels of functioning.
13.
She also confirmed that she and Mr.
Sampson, the Defendant’s Clinical Psychologist, prepared a
joint minute in which Mr. Sampson
differed with her – see
Exhibit D
pages
5 to 7. He found no evidence of a frontal lobe injury whereas she
did. She was of the view that this was because Mr. Sampson
focused on
the cognitive effect whereas she focused on the emotional behaviour.
14.
Under cross examination she testified that
the Plaintiff told her that he did not remember his mother arriving
at the scene of the
accident and his own arrival at the hospital. The
Plaintiff did not tell her that he remembered taking off the helmet
or being
given medication. On the other hand the Plaintiff’s
mother did not tell her that the Plaintiff had been arrogant before
the
collision and that he became worse thereafter. Whereas the reason
she was given for the Plaintiff leaving school in grade 10 was
that
he wanted to avoid the constant reminder of his friend who had died,
she was not informed of the other reason given to the
court to wit,
that he wanted a better studying environment since he could not
handle the environment of being taught in a class.
She insisted that
these differences would not make her alter her report.
15.
She admitted under cross examination that
the irritable nature could be caused by the pain associated with the
leg injury. She however,
indicated that frontal lobe injury could
also cause this, making it one of the possibilities. She was referred
to a number of the
Defendant’s experts who did not agree with
her findings, and she indicated that she differed with them. She also
conceded
that there was no literature or recorded study to back up
her assumption that those who score low in COWAT (Controlled Oral
Word
Association Test) do so because of a frontal lobe injury. She
made this assumption based on what the Plaintiff reported as his
performance in grade 12. She also noted in her report that the
Plaintiff’s performance was low post the collision.
16.
Samantha Behrmann
:
She in an Industrial Psychologist. She confirmed having prepared a
report on pages 75 to 109 – see
Exhibit
E
(Plaintiff’s Expert Bundle 1).
Her opinion was to the effect that the Plaintiff suffered a loss in
earnings. Her conclusion
was based on the report by the Clinical
Psychologist Ms. Fernihough. She and Mr. H Van Blerk, the Defendant’s
Industrial
Psychologist, prepared a joint minute (see
Exhibit
A
) which reflects her disagreement with
him. She attributed the disagreement to the fact that Mr. Van Blerk
concentrated on the cognitive
aspect whereas she focused on the
emotional behaviour of the Plaintiff.
17.
She also confirmed what appears on page 1
of the joint report (
Exhibit A
),
that whereas Mr. Van Blerk had access to all the experts’
reports including the Plaintiff’s, before preparing a joint
minute; she had not had access to any of the Defendant’s expert
reports including the Defendant’s Clinical Psychologist.
She
only had access to the joint minutes prepared by the expert
witnesses. She conceded that she had prepared her report based
on the
assumption that the reports at her disposal were correct since she
believed that if there were other reports to the contrary,
they would
have been made available to her. She also admitted that it would have
been prudent for her to prepare the report after
hearing from both
sides, but her concern was that had she done so, her report would not
have been made available in time for trial.
18.
It is this evidence, that the Defendant
argues that it does not warrant a response from its side, hence the
application for the
absolution from the instance. Harms JA
conveniently set out the definitive approach to an absolution
application in
Gordon Loyd Page &
Associates v Riviera and Another
2001 (1) SA 88
(SCA)
as
follows:
“
The
test for absolution to be applied by a trial court at the end of a
Plaintiff's case was formulated in Claude Neon Lights (SA)
Ltd v
Daniel
1976 (4) SA 403
(A) at 409G - in these terms:
'(W)hen absolution from the instance is sought at the
close of Plaintiff's case, the test to be applied is not whether the
evidence
led by Plaintiff establishes what would finally be required
to be established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the Plaintiff. (
Gascoyne v Paul and
Hunter
1917 TPD 170
at 173;
Ruto Flour Mills (Pty) Ltd v
Adelson
(2)
1958 (4) SA 307
(T).)'
This
implies that a Plaintiff has to make out a
prima
facie
case - in the sense that there is
evidence relating to all the elements of the claim - to survive
absolution because without such
evidence no court could find for the
Plaintiff (
Marine & Trade Insurance
Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as
inferences from the evidence are concerned, the inference relied
upon
by the Plaintiff must be a reasonable one, not the only reasonable
one (Schmidt at 93). The test has from time to time been
formulated
in different terms, especially it has been said that the court must
consider whether there is 'evidence upon which a
reasonable man might
find for the Plaintiff' (Gascoyne (
loc
cit
)) - a test which had its origin in
jury trials when the 'reasonable man' was a reasonable member of the
jury (Ruto Flour Mills).
Such a formulation tends to cloud the issue.
The court ought not to be concerned with what someone else might
think; it should
rather be concerned with its own judgment and not
that of another 'reasonable' person or court. Having said this,
absolution at
the end of a Plaintiff's case, in the ordinary course
of events, will nevertheless be granted sparingly but when the
occasion arises,
a court should order it in the interests of justice.
See
also
De Klerk v ABSA Bank LTD and Others
2003 (4) SA 315
(SCA).
19.
Evaluation.
Ms.
Fernihough’s evidence makes the backbone of the Plaintiff’s
case because it is her evidence that the Plaintiff had
a frontal lobe
injury which changed his emotional behaviour. It is very important
that this conclusion was reached through assessment
and interviews of
both the Plaintiff and his mother. This court also had the privilege
to hear from the Plaintiff and his mother.
For purposes of this
judgment, I have noted material differences between the information
conveyed to Ms. Fernihough and the evidence
led before this court.
20.
From the interview the Plaintiff had with
Ms. Fernihough, he attributed the road rage incidents to be the
direct consequences of
the injury he sustained in the motor vehicle
collision. It however appears from the evidence he told this court
that the road rage
incidents were the result of his attempts to
protect himself so as to avoid another motor collision. The
Plaintiff’s mother
also told the court that her son’s
levels of frustration were very high after the accident because he
could not study for
a university degree due to lack of finances.
According to her, he also got frustrated when he found himself with
no motor vehicle
to drive around when looking for jobs, due to the
accident. Unlike what was conveyed to the Clinical Psychologist, the
Plaintiff
had been a stubborn child even before the collision. His
mother described him as a go-getter who would be angry the whole week
if he became second in his class; for he wanted things to be done his
way. It is this attitude, that according to her, contributed
to him
leaving the school after grade 10.
21.
There are some discrepancies between the
evidence of the Clinical Psychologist and that of the Plaintiff. It
is necessary to zoom
into this since the evidence of the Clinical
Psychologist comprised mainly of what she was told by the Plaintiff.
Although the
Clinical Psychologist spent more than 5 hours with the
Plaintiff, she remained in the dark as for the other reason the
Plaintiff
dropped out of school which is that he wanted to register
for grade 12 through Damelin, the correspondence college. The only
reason
for dropping out of school that was conveyed to the Clinical
Psychologist, that he wanted to avoid the constant reminder of his
late friend, signifies the Plaintiff’s inability to handle
stress even before the collision.
22.
Whereas the Clinical Psychologist believes
that the Plaintiff’s academic performance dropped after the
accident, the Plaintiff
told the court that it did not. It is also
clear that the Clinical Psychologist was under the impression that
the Plaintiff was
unconscious and could not remember much of what
happened shortly after the collision. But this proved to be incorrect
since the
Plaintiff remembered taking off the helmet, being attended
to by the paramedics, his mother being there, being lifted on a
stretcher
and being taken to the hospital. The importance of these
assertions and concession cannot be undermined given their persuasive
role in the conclusion sought regarding the frontal lobe injury –
see
Ndlovu v Road Accident Fund
2014 (1) SA 415
(GSJ)
23.
This distortion of facts suggests to the
court that the Plaintiff may not have been an honest client to the
Clinical Psychologist
or a credible witness to the court. His
credibility is not only questionable when comparing his evidence with
that of the Clinical
Psychologist, but also with that of his mother.
He portrayed a picture of a young man who, at 21, already feels too
old to study
for a university degree and that he has no such
ambitions whatsoever. This is contradicted by his mother who alleged
that he is
a go-getter and has plans to register for B. Sc degree.
She testified that he is even saving for that. Contrary to what the
Plaintiff
portrayed, his mother further paints a picture of a person
who was frustrated at not being able to study owing to lack of funds.
The frustration at not being able to drive around was only disclosed
to this court by his mother. Lack of credibility on the Plaintiff
cannot be taken lightly especially because it was mainly through his
word that a conclusion was reached by the Clinical Psychologist
that
he may have suffered a frontal lobe injury to his brain.
24.
To demonstrate his forgetfulness, the
Plaintiff cited an incident in which he forgot a driver’s
licence on a scanner. It must
be mentioned that the said licence card
was not lost. He remembered it himself after he had left the office
and sent someone to
collect it. I do not see how this incident can be
said to be uncommon, especially when it is being compared to a
pre-accident era,
a period during which the Plaintiff was not
subjected to any assessment.
25.
There are however, other grounds for
holding against the Plaintiff. The Clinical Psychologist conceded
that her conclusion that
the “alleged behaviour” by the
Plaintiff could be traced to the frontal lobe injury was just one of
several possibilities.
One other possibility was that the Plaintiff
could have been reacting to pain in his leg. There is no basis upon
which the court
can give more weight to one possibility over another.
26.
The last ground is the absence of the
actuarial report. From the particulars of claim and the pre-trial
minutes, it is recorded
that the Plaintiff would want the loss of
earnings to be awarded as per the actuarial calculations. The
Plaintiff closed his case
without handing in the actuarial report or
leading such evidence.
27.
It is clear that the Plaintiff served a notice to the
Defendant in terms of Rule 36 (9) regarding his intention to lead the
evidence
of actuarial calculations. No such evidence was led and that
notice has no evidential value – see
Mkhize v Lourens and
Another
2003 (3) SA 292
(T) at p. 299 and
Moholi v Road
Accident Fund
(unreported case no. 37401/2013) GPJ.
28.
It was argued for the Plaintiff that in the
absence of the actuarial evidence, and if the Plaintiff managed to
discharge the causation,
the court would have to use the “informed
guess” as held in the
De Klerk
judgment (
supra
)
in calculating the loss. It is clear from the above that the onus on
causation was not even discharged. But even if it was, the
circumstances would be different in that actuarial evidence was just
left out deliberately by the Plaintiff, for reasons not disclosed
to
the court, whereas the premise has always been to have the actuarial
evidence led. In
De Klerk
(
supra
at
p. 332 ), Schutz JA held,
“
I do not think, however,
where the available evidence established a likelihood of some fact,
situation or event as a consequence
of the collision which is
incapable of quantification within narrow limits, that I am obliged,
because the onus is on the Plaintiff,
to act on the possibility least
favourable to her. Causation is one thing and quantification is
another, although I readily concede
that it is not always possible to
distinguish clearly between them in cases like the present one. It
has never, within the range
of my knowledge and experience, been the
approach of our Courts, when charged with the assessment of damages,
to resolve by an
application of the burden of proof such
uncertainties as I have referred to. I am not dealing with a case in
which the Plaintiff
could have called evidence to remove the
uncertainty, but neglected to do so.
I
am referring to cases like
Turkstra
Ltd v Richards
1926 TPD 276
,
in which the Plaintiff has laid before the Court such evidence as was
available, but that evidence has necessarily failed to remove
uncertainties with regard to matters bearing upon the quantum of
damage.
The Court, in such a case,
does the best it can with the material available. If it can do no
better, it makes the ''informed guess''
referred to by Holmes JA in
Anthony and Another v Cape Town
Municipality
1967 (4) SA 445
(A).”
[
own emphasis
].
29.
The question now is whether there is
evidence upon which a Court, applying its mind reasonably to the
evidence, could or might (not
should, nor ought to) find for the
Plaintiff. Has the Plaintiff made out a
prima
facie
case in the sense that there is
evidence relating to all the elements of the claim? Such elements
would be whether he sustained
a frontal lobe brain injury, which
injury resulted in the sequelae he alleges causing him loss of
earnings which loss was adequately
proved and calculated. In my view,
the submission lacks factual support from the evidence before the
court. Failure to lead the
actuarial report, which was available, is
in my view, fatal.
30.
In the result, I make the following order:
1.1
The
application for absolution from the instance is granted.
1.2
The
Plaintiff is ordered to pay the costs of the action.
_____________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
Dates of hearing: 19, 20 & 21
AUGUST 2014
Date of judgment: 29 AUGUST 2014
For the Plaintiff: Adv. Maxwell
Instructed by: Faber & Allin Inc Attorneys
Johannesburg
For the Defendant: Adv. Cajee
Instructed by: Mayat, Nurick Langa Inc
Johannesburg